Answer: JAMES RODAMER VS. A.W. CHESTERTON COMPANY et al

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                                |i DAVID M. GLASPY, Esq. SBN 95332

JAMES O, HARTMAN, Esq., SBN 61438 ELECTRONICALLY

LAW OFFICES OF GLASPY & GLASPY, INC. FILED

One Walnut Creek Center Superior Court of California,

100 Pringle Avenue, Suite 750 County of San Francisco

Walnut Creek, CA 94596

Telephone: (925) 947-1300 DEC 08 200

Facsimile: (925) 947-1594 GORDON PARK-LI, (Clerk
BY: VANESSA WU

Attorneys for Defendant Deputy Clerk

Fairbanks Morse Pump Corporation

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

JAMES RODAMER AND NANCY ) Case No. CGC-06-456569

RODAMER, )

) ANSWER TO COMPLAINT
Plaintiffs, )
)
v. )
)
WA.W. CHESTERTON COMPANY, etal, — )
)
Defendants.
)

Defendant, FAIRBANKS MORSE PUMP (hereinafter “I'-MP"), responds t
plaintift's(s') Unverified Complaint as follows:

Answering the allegations of plaintiffs(s') Complaint on file herein, this answerin
defendant denies each and every, all and singular, generally and specifically, the allegation
contained in said complaint, and each and every part thereof, and in this connection denie
that plaintiff(s) has/have been injured or damaged in any sum or sums, or at all, by reason of

any carelessness, negligence, act or omissions of this defendant.

Answer Toa ComplaintDEFENDANT HEREBY ASSERTS THE FOLLOWING SEPARATE AND

DISTINCT, AFFIRMATIVE DEFENSES:

1. That the plaintiff's claim is barred because it was not presented within th
time prescribed by law for the commencement of an action upon the claim asserted, pursuan
to the appropriate statutes of limitation, including, but not limited to the following separate
and distinct sections of the California Code of Civil Procedure, contained in Part Il, Title 11]
Chapter 3, beginning with Section 335 and continuing through Section 349 %. This action]
was not commenced within one year from the time of injury to plaintiff.

2. That the complaint, and alf causes of action contained therein, have failed t
set forth facts and allegations sufficient to constitute a cause of action against this answering
defendant in that the complaint fails to state with particularity the circumstances constituting
the alleged fraudulent concealment of the alleged wrongs.

The defendant has never engaged in any deception or fraud. The claims asserted inl
the complaint, therefore, are barred by the relevant statutes of limitation.

3. That plaintiff unreasonably delayed in bringing this action, without good
cause therefor. and thereby has prejudiced the rights of the answering defendant, and as @
direct and proximate result thereof, this aetion is barred by laches.

4, That plaintiff had not been injured by any product manufactured by FMP.

That at all relevant times, all FMP products were in conformity with the state of the
art in the industry and with Federal Standards. The products made by FMP are not inherentl
dangerous to human safety. Any asbestos in any FMP product is locked in, incapsulated, and
firmly bound or otherwise contained, FMP products do not release dangerous amounts off

asbestos dust or fibers into the air.5. That FMP has had no notiee or reason to believe that any of its products might
be potentially hazardous, since, inter alia, any asbestos fibers contained in its products arg
locked in, incapsulated, and firmly bound, or otherwise contained. FMP could not have
reasonably foreseen any danger associated with the use of any of its products and may not ba
charged with the notice that any of its products posed hazard.

FMP has never been and is not now a part of the “asbestos and insulation products”
industry to which plaintiff refers. Any alleged knowledge possessed by members of said
industry was not shared by and may not be imputed to FMP because FMP has not
manufactured asbestos-containing insulation products.

6. That FMP did not know or believe and had no reason to know or believe at the
time the plaintiff was allegedly exposed to its asbestos-containing products, or at any time.
that they posed a risk sufficient to give rise to a duty to warn.

That at all times since the enactment of the Occupation Safety and Health Act
(OSEA), FMP has fully complied with the requirements of OSHA and rules and regulations
thereunder.

7. That any warranties deemed 10 have been made by FMP were either fulfilled,
terminated or disclaimed.

8. That insofar as the complaint is based on an allegation of misrepresentation anc
fraud by FMP, the complaint fails to state with particularity the circumstances constituting
the alleged fraud. The complaint, therefore, fails to state a claim against FMP upon whicl
relief may be granted. FMP has never engaged in any concealment, misrepresentation o1

fraud,

Anawer To Complaint9. That the alleged injuries of plaintiff were caused, in whole of in part, by his
own acts or omissions in that, among other things:

a. Plaintiff failed to exercise ordinary care for his own safety when he knew otf

should have known of the hazards incident to his work;

b. Plaintiff failed to utilize protective clothing and safety equipment when he

knew or should have known that the materials with which he was working might bq

harmfal; -

c. Plaintiff failed to use properly FMP products and subjected them to use tha

was abnormal, inappropriate, improper and not reasonably foreseeable by FMP:

d. Plaintiff failed to adviso, requost or demand that his employer provide propey

safety equipment, clothing and protective devices for his use as an employee;

ec. Plaintiff’ failed to heed advice and wamings given about proper and sali

working conditions and use of the products with which he was working and [ailed t

use equipment provided to him by his employer and others.

10. ‘That plaintiff assumed any risks incident to his employment, including
exposure to asbestos. Plaintiff, at all times mentioned in the complaint, was aware of all
conditions of his employment, and fully appreciated all the risks, is any, that were involved.
including exposure to asbestos. Notwithstanding such knowledge on the part of the plaintiff
plaintiff continued in his employment and voluntarily assumed the tisk of the very injuries, i
any, of which the plaintiff complains. Such an assumption of the risks is a bar to am
recovery against FMP.

11, That the injuries and damages alleged in said complaint, and each and ever

cause of action thereof, if any there were, were the direct and proximate result of the misuse,

Anawer Yo Complaintabuse or alteration of said products after they fefi the custody and the control of FMP by
plaintiff and his employer.

12. That the culpable conduct of the plaintiff, including his own negligence and
assumption of the risk, caused, in whole or in part, the damages alleged in the complaint,
and, therefore, the alleged damages should be diminished in the proportion which thd
culpable conduct attributable to the plaintiff bears to any culpable conduct by FMP that
allegedly caused damage to the plaintiff, -

13. That any finding of negligence against this answering defendant should be
compared to the negligence of all other parties to this action, including the plaintiff and all
other defendants.

14, That any alleged injuries to the plaintiff were due to and solely caused by thd
negligence of his employers. their agents and employees, in failing to provide safe and
suitable working conditions; in failing to train properly and supervise the plaintiff; in failing
to wam the plaintiff of any dangerous condition that such employer, their agents and
employees knew or should have known were incident to the work being performed by the,

plaintiff; and in failing to provide safety equipment to the plaintiff. The negligence of said

employer, their agents and employees, is an intervening and superseding cause of the alleged]
injuries to the plaintiff and a bar to any recovery by the plaintiff against FMP.

15, That the employer of plaintiff was aware of the possible risks. if any, involved
in the utilization of materials containing asbestos, and fully appreciated all of the risks, i
any, and further voluntarily assumed the risks of injuries, loss and damages, if any, as se
forth in the complaint. The assumption of this risk proximately contributed to and caused the

damages, if any. described in the complaint.

Complaint16. That the worker's compensation carriers for said employers have made and
will in the future make certain payments to the plaintiff herein by reason of the injuries
plaintiff allegedly received while in the course and scope of his employment for said]
employers. That the aforesaid carelessness and negligence of plaintiff's employers bat
recovery against this answering defendant of all sums paid or to be paid to or on behalf o:
plaintiff by way of worker's compensation benefits as aforesaid. That the carelessness and
negligence of said employers is by law imputed to said insurance carriers.

17. That the complaint herein, and each cause of action thereof, is barred ay
against this defendant by the provisions of the California Labor Code, Section 3601, et seq.

18. That insofar as the complaint purports to assert a claim for punitive damages,
it is premised on an alleged course of eonduct vis a vis, the general public, and the plaintilf i
this action, is therefore, not the real party in interest as to said purported punitive damagg
claim, and is barred and foreclosed from asserting such claim.

19. FMP did not participate in any of the activities for which plaintiff asserts thal
punitive damages may be assessed.

20. Any asbestos-containing products manufactured and sold by this defendant
which give rise to plaintiff's claims herein were designed and manufactured pursuant to and
in accordance with specifications mandated by the United States Government or its agencies|
The knowledge of the United States Government and its agencies of any possible healt!
hazards from use of such products was equal or superior to that of this defendant, and by
reason thereof this defendant is entitled to such immunity from liability as exists in favor of

the United States Government or its agencies.WHEREFORE, Defendant prays judgment that plaintiff take nothing by reason of thd
complaint on file herein; that defendant have and recover their costs of suit herein incurred
and for such other and further relief as the court may deem just and proper under tha
cireumstances.

Dated: December _& _, 2006 GLASPY & GLASPY

“Jainek O. Hartman
/ttophey for Defendant
|ANKS MORSE PUMP

Answer To ComplaintPROOF OF SERVICE
I declare that:

1am employed in the County of Contra Costa, State of California, I am over the age of 18
‘years and not a party to the within action. My business address is One Walnut Creek Center, 100
Pringle Avenue, Suite 750, Walnut Creek, California 94596.

On December _€5, 2006, | served the following document(s): Answer to Complaint;
Fairbanks Morse Pump Corporation’s Abbreviated Disclosure of Expert Witnesses and
Attorney’s Declaration in Support Thereof:

By transmitting a true copy to:

Jeffrey A, Kaiser, Esq.
LEVIN, SIMES & KAISER
One Bush Street, 14" Floor
San Francisco, CA 94104

Via the following method:

(By Fax): By personally transmitting a true copy thereof via an electronic
facsimile machine between the hours of 9:00 am. and 5:00 p.m.

2 (By Mail): Iam familiar with this office’s business practice for collection
and processing of correspondence for mailing with the United States Postal
Service. This document, which is in an envelope addressed as stated above,
sealed with postage thereon fully prepaid and will be deposited with the
United States Postal Service this date in the ordinary course of business.

(By Fed-Ex): I am familiar with this office’s busiriess practice for collection
and processing of correspondence mailed via Federal Express. This
document, which is in an envelope addressed as stated above, sealed and all
fees prepaid and deposited in the Federal Express located on the first floor ai
100 Pringle Avenue, Walnut Creek, California on this date in the ordinary
course of business.

x By personally transmitting a true copy thereof via electronic mail to
LexisNexis for e-mailing to all parties in this action,

1 declare under penalty of perjury that the foregoing is true and correct. Executed on

December & , 2006, at Walnut Creek, California,

S

Tefti Nocéo

Fairbanks Morse Pump Corporaton’s Abbreviuted Disclosure of Experts and Proof of Service

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